Generally, no. Federal law provides significant protections, specifically through the Uniformed Services Employment and Reemployment Rights Act (USERRA), which ensures that members of the National Guard and other reserve components cannot be discriminated against in employment. This means federal law protects reservists against being fired or denied certain employment benefits because their military activities interfere with their jobs.
Understanding Your Protections Under Federal Law
Joining the National Guard is a protected activity under federal law. Employers are prohibited from discriminating against employees or job applicants based on their military service. This protection extends to hiring, firing, promotion, and any other term or condition of employment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA)
USERRA is the primary federal law that safeguards the civilian employment rights of military service members, including those in the National Guard. Its main goal is to protect service members' jobs while they are serving our nation and ensure they can return to their civilian employment without penalty.
Key Protections Under USERRA:
- Protection from Discrimination: Employers cannot deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment because of an individual's past, present, or future military service obligations.
- Reemployment Rights: If you leave your civilian job for military service, you generally have the right to be reemployed in your previous or a comparable position upon your return, provided certain conditions are met. This includes receiving the seniority, status, and pay you would have attained had you not been absent for military service.
- Health and Pension Benefits: You have the right to continuation of health care and pension accrual during periods of military leave.
- Freedom from Retaliation: Employers cannot retaliate against you for exercising your USERRA rights or for assisting in a USERRA investigation.
Key Scenarios and Rights
USERRA covers a broad range of military activities and provides specific rights depending on the situation.
| Scenario | Your USERRA Right |
|---|---|
| Hiring | Cannot be denied a job or an offer rescinded simply because you are a National Guard member or might join. |
| During Service | Cannot be fired, demoted, or denied promotions or benefits due to your military drills, annual training, or deployments. |
| Reemployment | After military service, you generally have the right to return to your job with the same (or better) seniority, status, and pay, provided you meet specific conditions. |
| Short-Term Absences | Protected for regular drills (e.g., one weekend a month) and annual training (e.g., two weeks a year). |
| Long-Term Deployments | Protected for deployments, generally up to five years of cumulative service with a single employer (though there are exceptions that can extend this period). |
What Qualifies as Military Service?
USERRA covers virtually all types of military training and service, whether voluntary or involuntary. This includes:
- Active duty
- Active duty for training
- Inactive duty training (such as weekend drills)
- Full-time National Guard duty
- Initial Active Duty for Training (basic training and advanced individual training)
- Certain types of funeral honors duty
Employer Responsibilities and Employee Duties
While USERRA offers robust protections, service members also have certain responsibilities:
- Employee Notice: Generally, you must provide advance written or verbal notice to your employer of your military service obligation. While not always required in emergencies, providing notice is always recommended.
- Timely Return: You must return to work or apply for reemployment within specific timeframes based on the length of your service. For example, if your service was 30 days or less, you must report to your employer by the beginning of the first full regularly scheduled working period on the next calendar day after your completion of service and safe transportation home.
- Honorable Service: Your military service must have concluded with an honorable discharge or release from service.
What If My Rights Are Violated?
If you believe your employer has violated your USERRA rights, there are several steps you can take:
- Communicate with Your Employer: Try to resolve the issue directly with your employer or their HR department. Sometimes, misunderstandings can be clarified.
- Contact ESGR: The Employer Support of the Guard and Reserve (ESGR), an agency within the Department of Defense, provides free ombudsman services to assist both service members and employers in understanding their rights and responsibilities under USERRA. They can help mediate disputes.
- File a Complaint with DOL VETS: If informal resolution fails, you can file a complaint with the U.S. Department of Labor's Veterans' Employment and Training Service (VETS). VETS investigates USERRA complaints and works to resolve them.
- Seek Private Legal Counsel: If VETS is unable to resolve your case, you have the right to pursue a private lawsuit in federal court.
